Patna High Court
Vikash Kumar @ Vikash PaswanversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SOURENDRA PANDEY
Holding
The Court held that anticipatory bail is maintainable and granted it to the petitioners.
Summary
Vikash Kumar and Anuj Kumar applied for anticipatory bail in a case where they were accused of assaulting a man with an axe, leading to his death. They argued that the FIR was lodged seven days after the incident, there were no eyewitnesses, no incriminating material was recovered, and the police investigation was flawed. The State opposed the bail, contending that a proclamation under Sections 82 and 83 of the CrPC had already been issued, making anticipatory bail untenable. The Court referred to the Supreme Court’s decision in Asha Dubey v. State of Madhya Pradesh, holding that a proclamation does not per se bar anticipatory bail and that the circumstances, nature of the offence, and lack of evidence must be considered. Finding no specific allegations or evidence against the petitioners, the Court granted anticipatory bail with conditions under Section 438(2) CrPC read with Section 482(2) B.N.S.S.
Issues considered
- Whether anticipatory bail is maintainable when a proclamation under Sections 82 and 83 CrPC has been issued.
- Whether the delay in filing the FIR and lack of eyewitnesses/incriminating material justify granting anticipatory bail.
- Whether the petitioners can be released on bail under Section 438 CrPC in view of the allegations under the Bharatiya Nyaya Sanhita.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 482(2)
- Bharatiya Nyaya Sanhita, 2023 — s. 103(1), 109, 3(5)
- Code of Criminal Procedure, 1973 — s. 438(2), 82, 83
Subjects
- anticipatory bail
- Section 82 CrPC
- Section 438 CrPC
- delay in FIR
- lack of evidence
- assault with deadly weapon
- homicide
- Bharatiya Nyaya Sanhita
- Bharatiya Nagarik Suraksha Sanhita
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.73862 of 2025
Arising Out of PS. Case No.-287 Year-2024 Thana- MADANPUR District- Aurangabad
======================================================
1. Vikash Kumar @ Vikash Paswan S/o Kouleshwar Paswan @ Kauleshar
Paswan R/o Village- Chariya, P.S.- Madanpur, District- Aurangabad
2. Anuj Kumar @ Anuj Paswan @ Anoj Kumar S/o Kouleshwar Paswan @
Kouleshar Paswan R/o Village- Chariya, P.S.- Madanpur, District-
Aurangabad
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Bachan Jee Ojha, Adv.
Mr. Binod Kumar Pandey, Adv.
For the State : Mr. Aditya Narayan Singh1, APP
For the O.P. No. 2 : Ms. Leelawati Kumari, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL ORDER
3 18-02-2026 Heard the learned counsel for the petitioners, the
learned counsel for the opposite party No. 2 as well as the
learned Additional Public Prosecutor for the State.
2. The petitioners are apprehending their arrest in
connection with Madanpur P.S. 287 of 2024 registered for the
offence(s) under Section(s) 109 and 3(5) of the Bharatiya Nyaya
Sanhita, 2023 (B.N.S.) and Section 103 (1) of the B.N.S. was
later added on.
3. The prosecution story in short is that while the
informant’s brother was sleeping in his courtyard, the accused
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persons assaulted his brother with an axe causing injury to the
right side of his head. He raised hulla upon which his wife and
daughter-in-law reached there and saw the accused persons
having axe in their hand and thereafter they fled away. Later on,
he died in course of treatment.
4. The learned counsel for the petitioners submits that
the petitioners are innocent and they have falsely been
implicated in this case as the story is false and concocted. It has
been submitted that there is no eye-witness to the occurrence
and that no incriminating material has been recovered either
from the possession or from the house of the petitioners. It has
further been submitted that there is a delay of seven days in
lodging of the FIR without any valid reason.
5. The learned counsel for the petitioners next submits
that one Pratima Kumari had earlier given a fardbeyan on
24.07.2024 at Om Fortis Hospital and had named one Shivman
Bhuiyan and Ajay Bhuiyan to have assaulted her father-in-law
with Kulhari and Fasuli respectively. However, the said
fardbeyan mysteriously not formed the basis of the present case
and as an after thought, a written report was submitted after
seven days of the incident. It has been submitted that the
allegation made upon the petitioners, of assaulting with Fasuli,
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in the said fardbeyan, does not find support from the post-
mortem report. It has also been submitted that after fifteen days
of the alleged occurrence, the victim died and, hence, Section
103(1) BNS was added. It has next been submitted that the
police, after investigation, submitted final form against the
petitioners, however, the learned Court of Judicial Magistrate,
without appreciating that there was nothing on record to suggest
the involvement of the petitioners, has taken cognizance against
them. It has lastly been submitted that the petitioners have no
criminal antecedents.
6. The learned A.P.P. for the State and the learned
counsel for the opposite party No. 2 have vehemently opposed
the prayer for grant of anticipatory bail to the petitioners.
7. The learned counsel for the opposite party No. 2
submits that the petitioners are named accused in the present
case and there is allegation upon the petitioners, having been
found to be fleeing from the place of occurrence. It has further
been submitted that process under Sections 82 and 83 Cr.P.C.
has already been effected against the petitioners and hence the
anticipatory bail is not maintainable and thus the application be
rejected.
8. To the preliminary objection raised by the learned
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counsel for the opposite party No. 2 as regards to the
maintainability of the anticipatory bail application, the judgment
rendered by the Hon’ble Supreme Court in the case of Asha
Dubey Vs. State of Madhya Pradesh, reported in 2024 SCC
OnLine SC 5633 in paragraph nos. 8 and 9 has held as under:-
“8. Coming to the consideration of
anticipatory bail, in the event of the declaration
under Section 82 of the Cr.P.C., it is not as if in all
cases that there will be a total embargo on
considering the application for the grant of
anticipatory bail.
9. When the liberty of the appellant is
pitted against, this Court will have to see the
circumstances of the case, nature of the offence
and the background based on which such a
proclamation was issued. Suffice it is to state that it
is a fit case for grant of anticipatory bail, on the
condition that the appellant shall cooperate with
the further investigation. However, liberty is also
given to the respondents to seek cancellation of
bail that has been granted, in the event of a
violation of the conditions which are to be imposed
by the Trial Court or if there are any perceived
threats against the witnesses.”
9. Thus, the objections raised by the learned counsel
for the O.P. No. 2 with regard to anticipatory bail being not
maintainable once the process under Sections 82 and 83 CrPC
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has been issued, is not tenable in law, especially on account of
the fact that the petitioners were not shying away from
appearing before the court rather they were pursuing their
statutory right of grant of anticipatory bail.
10. This court in the present case has found that
initially one FIR was recorded at the hospital wherein Pratima
Kumari had given her statement that one Shivman Bhuiyan and
Ajay Bhuiyan have assaulted her father-in-law with Kulhari and
Fasuli respectively, however, the same was never brought on
record and later it was replaced by a written report. It is also a
fact that the police had initially submitted a final form against
the petitioners and thereafter, differing from the same, the
learned court of judicial magistrate had taken cognizance.
11. Therefore, in view of the said background, I find
that it is a fit case for grant of anticipatory bail especially for the
fact that there is no specific allegations against the petitioners
and barring suspicion there is no evidence against them, let the
petitioners, above-named, be released on anticipatory bail, in the
event of their arrest or surrender before the concerned
Court/successor Court within a period of four weeks from today,
on their furnishing bail bond in the sum of Rs. 10,000/- (Rupees
Ten Thousand) each with two sureties of the like amount each to
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the satisfaction of the concerned Court/successor Court where
the case is pending in connection with Madanpur P.S. Case No.
287 of 2024, subject to the conditions as laid down under
Section 438(2) of the Code of Criminal Procedure, 1973 read
with corresponding Section 482(2) of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (B.N.S.S.) as well as subject to the
following conditions :
(i) One of the bailors of the petitioners shall
be their close relative and the other shall be a
local resident.
(ii) The petitioners shall remain physically
present before the concerned Court on each and
every date of the trial and shall cooperate in the
investigation.
(iii) In case of absence for two consecutive
occasions or in violation of the terms of the bail,
the bail bond of the petitioners will be liable to be
cancelled by the concerned Court.
(iv) If the petitioners, in future, is found to be
involved in similar nature of offence(s), the
prosecution shall be at liberty to move for
cancellation of their bail bond.
(v) The concerned Court shall verify the
criminal antecedent of the petitioners and in case,
at any stage, it is found that he has concealed their
criminal antecedent, the Court concerned shall
take necessary steps for cancellation of their bail
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bond. However, the acceptance of bail bond in
terms of the above-mentioned order shall not be
delayed for purpose of or in the name of
verification.
12. It is made clear that the observations, if any, made
in this order, shall be of no bearing during the trial.
13. The application stands allowed.
(Sourendra Pandey, J)
Praveen-II/
aditya/-
U T
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